Patch v. White/Dissent Matthews

Mr. Justice MATTHEWS, Mr. Justice GRAY, Mr. Justice BLATCHFORD, and myself cannot concur in the judgment of the majority of the court.

The suit was an action of ejectment in which the will was offered in evidence to prove the plaintiff's title. The property in controversy was lot 3, in square 406, in the city of Washington. The plaintiff claimed under a devise of lot 6, in square 403. The devise was as follows: 'I bequeath to my dearlybeloved brother Henry Walker, forever, lot numbered six, in square four hundred and three, together with the improvements thereon erected and the appurtenances thereto belonging.' The devise does not describe the property sued for. Extrinsic evidence to aid the devise was offered by the plaintiff, who insisted that it was admissible for the purpose of removing a latent ambiguity.

Latent ambiguities are of two kinds: First, where the description of the devisee or the property devised is clear upon the face of the will, but it turns out that there are more than one estate, or more than one person, to which the description applies; and, second, where the devisee or the property devised is imperfectly, or in some respects erroneously, described, so as to leave it doubtful what person or property is meant.

It is clear that if there is any ambiguity in the devise under consideration it belongs to the latter class. But there is no ambiguity. The devise describes the premises as lot 6, in square 403. It is conceded that there is such a lot and square in the city of Washington, and but one, and it is not open to question what precise parcel of land this language of the devise points out It clearly, and without uncertainty, designates a lot on Ninth street, between I and K streets, well known on the map of the city of Washington, whose metes and bounds and area are definitely fixed and platted and recorded. The map referred to was approved by President Washington in 1792, and recorded in 1794. Thousands of copies of it have been engraved and printed. All conveyances of real estate in the city made since it was put on record refer to it; it is one of the muniments of title to all the public and private real estate in the city of Washington; and it is probably better known than any document on record in the District of Columbia. The accuracy of the description of the lot devised is therefore matter of common knowledge, of which the court might even take judicial notice.

Nor is any ambiguity introduced into the description by the words 'with the improvements thereon erected and the appurtenances thereto belonging,' or by the testimony which was offered to prove that at the date of the will and of the death of the testator the lot described in the devise was unimproved. It is plain that the words 'improvements thereon erected' were a conveyancer's phrase of the same nature as the words which immediately followed them namely, 'and the appurtenances thereto belonging,' and the whole phrase is simply equivalent to the words 'with the improvements and appurtenances.' The words 'with the improvements thereon erected' were not intended as a part of the description of the premises, which had already been fully and accurately described, but were used, perhaps, as a matter of habit, or, perhaps, out of abundant but unnecessary caution, to include in the grant improvements that might be put upon the premises between the date of the testator's will and the date when it took effect, namely, at his death. The phrase is one not commonly used to identify the premises, and was not so used in this devise. There is persuasive evidence of this in the will, for in eight other devises of realty the testator particularly describes the character of the improvements. Thus, in the devise to his brother, John Walker, the improvements are described as a 'two-story brick house, back building;' in the devise to Lewis Walker 'as a two story brick building, with a basement story back building;' in the devise to Margaret Peck of four lots as 'a two-story frame house, erected on lot 27;' in the devise to Louisa Ballard as a 'three-story brick house;' in the devise to Sarah McCallion as a 'frame house;' in the devise to James Walker of two lots as 'two two-story brick houses;' and in the residuary devise to James Walker of the testator's real estate as 'a house, part brick and part frame,' and 'a slaughter-house. 'There is no proof that any of the other real estate mentioned in the will was improved. There is therefore no doubt about the identity of the lot described in the devise.

But even if the words under discussion were used to carry the idea that the property mentioned in the devise was improved, and it turned out to be unimproved, these facts would not make the description ambiguous or uncertain; for it is a settled rule of construction that if there be first a certain description of premises, and afterwards another description in general terms, the particular description controls the general. Thus, in Goodtitle v. Southern, 1 Maule & S. 299, it was held that by a devise of 'all my farm called 'Trouges farm,' now in the occupation of C.,' the whole farm passed, though it was not all in C.'s occupation. See, also, Miller v. Travers, 8 Bing. 244; Goodright v. Pears, 11 East. 58. Another cognate rule, well settled in the law, is also applicable here, and that is that where there is a sufficient description of premises, a subsequent erroneous addition will not vitiate the description, and we may reject a false demonstration. Doe v. Galloway, 5 Barn. & Adol. 43; Law v. Hempstead, 10 Conn. 23; Bass v. Mitchell, 22 Tex. 285; Peck v. Mallams, 10 N. Y. 509, 532; Abbott v. Abbott, 53 Me. 360; Doane v. Wilcutt, 16 Gray, 368, 371; Jones v. Robinson, 78 N. C. 396; 3 Washb. Real Prop. 629.

Upon these established rules, as well as upon the general sense and practice of mankind, it is beyond controversy that a lot described in the words used in the devise in question would pass either by will or deed, though it should turn out that the lot was unimproved. The description is as particular and precise as if the metes and bounds, the area, and the street on which the lot was situated, and every other particular of size and situation, had been given. The identity of the lot is settled beyond question. Upon the authorities cited the description is not rendered ambiguous or uncertain by the use of the general words 'with the improvements erected thereon,' even though there be no improvements. It follows that the description of the premises in controversy contained in the devise was good and sufficient, and, upon well-settled rules of law, free from doubt or ambiguity. It is therefore beyond controversy that if the testator had been the owner of lot numbered 6, in square 403, it would have passed by the devise, and the sufficiency of the description could not have been challenged. The only ground, therefore, upon which the plaintiff can base his contention that there is a latent ambiguity in the devise is his offer to prove that the testator did not own the lot described in the devise, but did own another, which he did not dispose of by his will. This does not tend to show a latent ambiguity. It does not tend to impugn the accuracy of the description contained in the devise. It only tends to show a mistake on the part of the testator in drafting his will. This cannot be cured by extrinsic evidence. For, as Mr. Jarman says, 'as the law requires wills, both of real and personal estate, to be in writing, it cannot, consistently with this doctrine, permit parol evidence to be adduced either to contradict, and to, or explain the contents of such will, and the principle of this rule evidently demands an inflexible adherence to it, even where the consequence is a partial or total failure of the testator's intended disposition; for it would have been of little avail to require that a will ab origine should be in writing, or to fence a testator around with a guard of attesting witnesses, if, when the written instrument failed to make a full and explicit disclosure of his scheme of disposition, its deficiencies might be supplied or its inaccuracies corrected from extrinsic sources.' 1 Jarm. Wills, (4th Ed.) 409.

If there is any proposition settled in the law of wills it is that extrinsic evidence is inadmissible to show the intention of the testator, unless it be necessary to explain a latent ambiguity, and a mere mistake is not a latent ambiguity. Where there is no latent ambiguity, there no intrinsic evidence can be received. The following cases support this proposition.

In Miller v. Travers, 8 Bing. 244, TINDAL, chief justice of the common pleas, and LYNDHURST, chief baron of the exchequer, were called in to assist BROUGHAM, lord chancellor. Their joint opinion was delivered by TINDAL, C. J. The case was this: The testator devised all his freehold and real estate in the county of Limerick and city of Limerick. The testator had no real estate in the county of Limerick, but his real estate consisted of lands in the county of Clare, which was not mentioned in the will, and a small estate in the city of Limerick, inadequate to meet the charges in the will. The devisee offered to show by parol evidence that the estates in the county of Clare were inserted in the devise to him in the first draft of the will, which was sent to a conveyancer to make certain alterations not affecting those estates; that by mistake he erased the words 'county of Clare,' and that the testator, after keeping the will by him for some time, executed it without adverting to the alteration as to that county. The case was considered on the assumption that the extrinsic evidence, if admitted, would show that the county of Clare was omitted by mistake, and that the land in that county was intended to be included in the devise; but the evidence was held inadmissible to show that the testator intended to devise property which had been omitted by mistake.

So, in Box v. Barrett, L. R. 3 Eq. 244, Lord ROMILLY, M. R., said: 'Because the testator has made a mistake you cannot afterwards remodel the will, and make it that which you suppose he intended and as he would have drawn it if he had known the incorrectness of his supposition.'

In Jackson v. Sill, 11 Johns. 201, which was an action of ejectment, the defendant claimed under the following devise to the testator's wife: 'I also give to my said beloved wife the farm which I now occupy, together with the whole crops,' etc. In a subsequent part of his will the testator mentioned said premises as his lands. It turned out that the premises in controversy were, at the time the will was made, and at the death of the testator, in the possession of one Salisbury under a lease for seven years. The plaintiff offered testimony to show that the testator intended to devise the premises as a part of the farm which he occupied himself, and of which he died possessed. Chief Justice THOMPSON, afterwards a justice of this court, in delivering judgment, said: 'I think it unnecessary to notice particularly the evidence offered, for it is obvious that if it was competent, especially that of Mr. Van Vechten, it would have shown that the premises were intended by the testator to be devised to the defendant, Sill. The will was drawn, however, by Mr. Van Vechten under a misapprehension of facts, and under a belief that the testator was in the actual possession of the premises. It is therefore a clear case of mistake, as I apprehend, and under this belief I have industriously searched for some principle that would bear me out in letting in the evidence offered; but I have searched in vain, and am satisfied the testimony cannot be admitted in a court of law without violating the wise and salutary provisions of the statute of wills, and breaking down what have been considered the great landmarks of the law on this subject.'

In Turker v. Seaman's Aid Soc., 7 Metc. 188, the testator gave a legacy to the 'Seaman's Aid Society, in the City of Boston,' which was the correct name of the society. The legacy was claimed, however, by another society called the 'Seaman's Friend Society.' Chief Justice SHAW, in stating the case, said: 'It is also, we think, well proved by the circumstances which preceded and attended the execution of the will, as shown by extrinsic evidence, that it was the intention of the testator to make the bequest in question to the Seaman's Friend Society, and at the time of the execution of the will he believed he had done so;' 'that the testator was led into this mistake by erroneous information honestly given to him by Mr. Baker, who drew the will;' 'that the testator acted on this erroneous information, and made the bequest to the Seaman's Aid Society by their precise name and designation.' The court, therefore, held that there was simply a mistake, and no latent ambiguity and that extrinsic evidence was inadmissible.

It is unnecessary to extend this opinion by other extracts from the adjudged cases. The quotations we have made are from masters of the law. The following additional authorities will be found to sustain the proposition we have stated: Cheyney's Case, 5 Reporter, 68; Doe v. Oxenden, 3 Taunt. 147; Smith v. Maitland, 1 Ves. Jr. 363; Chambers v. Minchin, 4 Ves. 675, and note: Doe v. Westlake, 4 Barn. & Ald. 57; Newburgh v. New- burgh Saltonstall, 3 Metc. 423, 426; Mann v. Executors of Mann, 1 Johns. Ch. 231; Yates v. Cole, 1 Jones, Eq. 110; Walston's Lessee v. White, 5 Md. 297; Cesar v. Chew, 7 Gill & J. 127; Fitzpatrick v. Fitzpatrick, 36 Iowa, 674; Kurtz v. Hibner, 55 Ill. 514.

Our conclusion is therefore that, as the evidence offered and rejected was for the purpose of explaining a latent ambiguity when there was no ambiguity, either latent or patent, it was properly rejected.

The opinion of the court in this case allows what seems to us to be an unambiguous devise to be amended by striking out a sufficient description of the premises devised, and the blank thus made to be filled by ingenious conjectures based on extrinsic evidence. This is in the face of the statute of frauds in force in the District of Columbia, where the premises in controversy are situate. Fifty years after the unequivocal devise in question, as written and executed by the testator, had, as required by law, been placed upon the records of the District for the information of subsequent purchasers and incumbrancers, it is allowed to be erased, and, by argument and inference, a new one substituted in its place. This is not construing the will of the testator; it is making a will for him. The decision of the court subjects the title of real estate to all the chances, the uncertainty, and the fraud attending the admission of parol testimony, in order to give effect to what the court thinks was the intention of the testator, but which he failed to express in the manner required by law.